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County of Bergen v. Borough of Fair Lawn

BER-C-235-08 (N.J. Super. Ch. Div. 2008) (Unpublished)

STREETS; MUNICIPALITIES; ACCESS — Every property owner has a right to reasonable access to the general system of public roads and a governmental entity, in its capacity as an owner of real property, enjoys the same right.

A county sued to require a municipality to remove barriers so as to allow a right of access from a county park to a public street. Specifically, the county wished to construct an access drive from an adjacent public street to a parking lot it would create within its park near the park’s existing soccer fields. In the suit, the municipality sought to stop the project and to assert its right to control public streets within its borders. The soccer fields were surrounded by thick woods which, in turn, were surrounded by private residences and businesses.

Historically, visitors seeking access to the soccer fields parked their cars at a private restaurant, but the restaurant then installed a gate blocking access to the park. The county was unsuccessful in negotiating to regain the parking, so it sought to create access to the park from the public street. The proposed improvements were exclusively on county owned property and were not subject to municipal land use ordinances. The municipality offered expert testimony that traffic flow on the public street could increase by as much as 400 vehicles on a given Saturday. The county asserted it evaluated whether alternative viable means of access were available, and found none. Other possible access points that were considered would result in dangerous weight loads caused by the construction vehicles, or would have required purchasing or condemning private property. The municipality suggested its own alternatives to the county’s, such as buying private property or obtaining easements.

The Court held that every property owner had a right to reasonable access to the general system of public roads and, in this instance, the use of the soccer fields within the park gave the county a right to reasonable access. In short, the Court held that a right of access to an abutting public street may be lawfully curtailed only if there is existing, reasonable alternative access to the public roads.

The Court found other possible access points would make travel to the soccer fields lengthier or more strenuous. Therefore, it concluded that denying access to the public road would be unreasonable. It also held there to be no legal duty for a property owner to try to acquire or create its own access as a precondition to using an available, adjoining public roadway. While the Court recognized that the construction would likely cause a significant increase in vehicular traffic, there was nothing in the record to suggest the street could not function as a roadway for cars to and from the park. The Court also remarked that if construction were not permitted, the public would lack reasonable access to that section of the park.

Accordingly, the Court found that the county, like all real property owners, was entitled to reasonable access to the municipality’s public streets; that it had no existing viable public street access to the soccer fields and surrounding area; and that the county had no affirmative duty to create alternative access by condemnation, acquisition, land-swap or otherwise.


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